Intellectual Property and Technology News

The Canadian Federal Court has provided new guidelines for efficient trial management of all trials over five days in length. These guidelines are directed to improving the efficiency of trials in the Federal Court particularly for intellectual property proceedings and are released now in anticipation of more trials under the overhauled pharmaceutical patent linkage system expected imminently.

The Notice to the Profession, issued April 28, 2017, provides for the early exchange of material and positions between the parties and the earlier involvement of the trial judge. The guidelines follow a 2015 Practice Notice directed to the efficient pre-trial steps of complex litigation addressing limits on examinations for discovery and refusals motions, and early trial judge involvement.

As part of the implementation of the Comprehensive Economic Trade Agreement (CETA) with Europe, Canada committed to, among other things, overhauling the pharmaceutical litigation process (i.e. the patent linkage regime). The changes will include having all proceedings relating to the regulatory approval/patent linkage system proceed by way of actions with full trials rather than by application, as the current regime provides in Canada. In many cases under the current system, the initial applications are followed by patent infringement/impeachment proceedings resulting in duplicative proceedings dealing with many of the substantive issues addressed in the earlier applications.

With the expected increase in trials and the general desire to make intellectual property litigation more efficient, the trial management practice notice put limits on last minute motions and fixes deadlines for providing objections to expert reports and discovery read-ins. The application of the guidelines will be handled by the case management judge and the trial judge. All pharmaceutical and most other intellectual property cases in the Federal Court in Canada are typically case managed from the pleadings stage.

Three key items implemented by the Practice Notice are:

Prohibition on motions brought within 60 days of the trial without leave of the case management judge. While not under this practice notice, Justice Barnes described the effect of late filed motions on a trial schedule: “The interests of the litigants are always in the forefront of the Court’s consideration of pleading amendments. But the Court is not at the total mercy of the parties before it. The public, too, has an interest in the preservation and allocation of Court time and resources.”1

A trial schedule, including brief descriptions of the proposed areas of testimony of fact witnesses and the duration of testimony, are to be prepared and exchanged at least two weeks before the trial.

Objections to expert reports are to be made within 30 days of service of the reports and no later than 30 days before trial. In addition, copies of expert reports are to be submitted to the court at least two weeks before trial in both paper and electronic form, for those experts which the party undertakes to call.

All of the items in the Practice Notice are subject to further direction of the trial judge and case management judge. Items such as compendia, joint books of documents, statements of fact and issue lists are also to be discussed and exchanged prior to the trial.

This practice notice should assist the court and the parties with trial planning and lead to more efficient use of trial time by adopting many of the best practices already used by experienced counsel and judges.